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June 20, 2007

Twelve Years and Still Fighting in Murder Case

A lot has changed since Marc Zilversmit defended Joseph Diggs at his murder conspiracy trial 12 years ago. The prosecutor on the case, Floyd Andrews, is now a criminal defense attorney. Counsel for one of Digg's co-defendants has retired, and the other now works for the S.F. sheriff's department. The trial judge, Alexander Saldamando, has left the bench for ADR Services, and the judge who presided over the preliminary hearing, J. Dominique Olcomendy, is deceased.

But Zilversmit is still fighting to prove his client's innocence, albeit without much success to date. On Monday, he filed a brief with the Ninth Circuit U.S. Court of Appeals seeking to vacate Diggs' conviction, saying his client was sentenced to life in prison despite almost zero evidence linking him to the crime. "There were no fingerprints," Zilversmit writes. "There was no gunpowder residue on Diggs’ hands despite being arrested shortly after the shooting occurred. There were no eyewitnesses. There was no gun found. No blood was found on his clothes. There was no motive established or suggested for Diggs to participate in the crime."

But Diggs was present near the crime scene around the time somebody shot Robin Williams in the back of the head near Third and Jerrold streets the night of Feb. 7, 1995.

The theory of the prosecution was that Diggs had tried to kill Williams to prevent her from testifying in a drugs and weapons case against her ex-boyfriend, Gregory Brown. Brown had threatened Williams a couple of weeks earlier, according to the federal court order denying Diggs' habeas petition.

On the night of the shooting Williams was smoking crack cocaine with a friend of Brown's, Wanda Fain. Fain then suggested they go to a "trick house" to prostitute themselves, and bring Diggs along "for protection." Williams testified that the last thing she remembered that night was exiting a bus and walking down Jerrold Street with Fain, while Diggs followed a few feet behind. Williams was found unconscious and bleeding in the middle of the street around 8:30 p.m.

Police arrested Fain and Diggs at Brown's residence several hours later. There was no gun residue or other physical evidence linking them to the shooting, but they gave inconsistent statements to police about how they'd traveled to Jerrold Street, so Zilversmit tried to get Diggs' case severed from Fain's. Judge Saldamando declined and instead ordered Fain's statements redacted, but at trial a police officer was allowed to testify about Fain's statements over objections from Zilversmit. Diggs, Fain and Brown were all convicted of conspiracy to commit murder, attempted murder and related charges.

In his appeal, Zilversmit says the evidence isn't sufficient to sentence a man to 25 years to life in prison. "Diggs barely knew victim Robin Williams and had almost no interaction with her on the night of the shooting," Zilversmit writes. "No motive was alleged for Diggs’ participation in the crime, no physical evidence linked him to the crime, and there was no eyewitness evidence whatsoever that he played any role in it. Williams, a felon and chronic cocaine user who suffered an admitted loss of memory due to the gunshot wound in the head, had no memory of the shooting."

Last year, U.S. District Judge Ronald Whyte turned away Zilversmit's arguments. "There is evidence in the record upon which a reasonable jury could find that Fain and [Diggs] led Williams to the location of her shooting and were with her at the moment she was shot," Whyte wrote. "... A reasonable jury could conclude that when Williams testified that she was walking with Fain and [Diggs] when 'the lights went out,' ... 'the lights went out' at the precise moment the bullet struck her in the back of the head."

Zilversmit and co-counsel Nina Wilder also argue that Judge Saldamando committedBruton error by admitting co-defendant Fain's statements, or alternatively that Zilversmit provided ineffective assistance for failing to properly preserve an objection to those statements. They further allege jury misconduct.

Zilversmit acknowledges that the case has become something of a personal crusade. "I should have won at the preliminary hearing. The evidence wasn't there," he says. "My client wanted to take it to trial — and I'm sort of ashamed and embarrassed I didn't win at trial."